A case involving liability for alleged exposure to asbestos was recently heard by the Supreme Court, raising interesting issues as to the applicability of the Factories Act 1937 and Asbestos Industry Regulations 1931.

Background

The claimant, Mr McDonald, was employed during the 1950s as a lorry driver and subsequently as a fitter by the predecessor to the Department for Communities and Local Government in Watford. From 1954 to 1959, he frequently drove to Battersea Power Station to collect pulverised fuel ash. During this period, he claimed that he was exposed to asbestos dust produced by lagging operations at the plant, which caused him to subsequently develop mesothelioma in July 2012. He therefore claimed in negligence against both the DCLG and the current owner of the power station, National Grid Electricity Transmission plc (“NG”), and for breach of statutory duty against NG under the Asbestos Industry Regulations 1931 and Factories Act 1937.

In the High Court, Judge Denyer QC dismissed both claims. In relation to the claim in negligence, he found that Mr McDonald’s exposure to asbestos had been limited and, in the state of knowledge available at the time, could not reasonably have been foreseen to be harmful by either defendant. The claim under the Factories Act 1937, s 47(1) (which provides that employers should take “all practicable measures” to protect employees against the inhalation of injurious dust or fumes), was similarly dismissed on the basis that, in the context of the knowledge available at the time, this duty would not have applied to Mr McDonald given the limited levels of exposure he received. The Judge also dismissed the claim under the Regulations, as it could not be ascertained that an exception for premises in which work exposing employees to asbestos was carried on only occasionally did not apply.

Court of Appeal Decision:

In the Court of Appeal, Lord Justice McCombe upheld the High Court’s decision regarding the claims in negligence, but challenged the decisions as to breach of duty under the Factories Act 1937 and the Regulations. In terms of the Factories Act, he firstly questioned whether s 47(1) even applied to Mr McDonald, given that he had not been directly employed by the owners of the power station and had only infrequently visited the plant. Even if Mr McDonald had been a relevant employee for the purposes of the Act, he had moreover failed to prove under the Section that a “substantial quantity of dust” had in fact been given off, as there was insufficient evidence to prove “what quantities of dust were discharged… and in what circumstances”. The Court of Appeal therefore upheld High Court’s dismissal of the claim, but for the different reasons stated.

In considering the Regulations, the Court first turned to the question of whether these applied to factories not specifically engaged in the processing of asbestos. The defendants contested that a former Court of Appeal authority, Cherry Tree Machine Co Ltd & anor v Dawson [2001], which stated that the Regulations applied to any factory, regardless of whether its primary purpose was processing asbestos, had been decided “in curiam” and should not be followed, as it was based on a misunderstanding of a primary report leading to the original implementation of the Regulations in 1931. Lord Justice McCombe however dismissed this, stating that regardless of whether the report had been misunderstood, it was insufficient basis on which to decline to follow Cherry Tree as decided in curiam. The Regulations could therefore potentially apply to Mr McDonald.

Given this, the Court was then required to consider whether NG had been involved in the “mixing” of asbestos in breach of reg 2(a) of the Regulations. Lord Justice McCombe first considered the exception for when work exposing employees to asbestos was only occasional, as noted by the High Court. He held that the High Court had wrongly reversed the burden of proof by requiring Mr McDonald to prove that this exception did not apply, whereas it was in fact for the defendant to prove that it did. On the evidence, NG had in this case failed to prove that the case fell outside the scope of the Regulations, therefore this exception could not be applied. The knowledge of harm available at the time moreover had no bearing on applicability of the statute; the relevant question was rather whether NG had taken “reasonably practicable” steps to suppress production of the dust, under Regulation 2(a).

In this, the Court of Appeal similarly held that the burden of proving that reasonably practicable steps had been taken should fall on the defendant. Since insufficient evidence had been given on this point, he found that NG should be found liable for breach of the Regulations, and that the appeal should be allowed. Although the causation of Mr McDonald’s mesothelioma had not been considered by the High Court and therefore limited evidence on it was available, the Court of Appeal held that had moreover been sufficient evidence to establish causation, as there was no other suggestion that Mr McDonald would have been exposed to asbestos elsewhere, meaning that the mesothelioma could only have been caused by his exposure at the hands of the defendants. The claim under the Regulations was therefore upheld in relation to the second defendant, NG, only.

Appeal to the Supreme Court:

The appeal to the Supreme Court is by both parties. On the side of the respondents, NG, they again dispute the applicability of reg 2(a) to factories not engaged primarily in the manufacture of asbestos, seeking to overturn the decision in Cherry Tree. On the cross-appeal, the appellant rather seeks to challenge the Court of Appeal’s ruling that s 47(1) of the 1937 Act did not apply, as there was insufficient evidence to prove that Mr McDonald was exposed to a “substantial” amount of dust.

The outcome of these decisions will shed interesting light on both the applicability of such statutory provisions, as well as on employers’ liability in relation to contractors exposed to asbestos during the course of their employment, but who are not directly employed by the party causing such exposure.